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An Analysis of Representations of the Legality of Security Council Actions in the Post-Cold War Eta

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i.' rrj ão'ð'cq Securing the New V/orld Order: An Analysis of Representations of the Legality of Security Council Actions in the Post-Cold War Eta Anne Margaret Orford A thesis submitted for the degree of Doctor of Philosophy of the University of Adelaide in the Faculty of Law January 1999 This work contains no material which has been accepted for the awa¡d of any other degree or diploma in any r:niversity or other tertiary institution and, to the best of my knowiedge and belief, contains no material previously published or written by another person, except where due reference has been made in the text. The thesis includes parts of the following articles, which w'ere written solely by me dr:ring the period of the candidature: 'Locating the International: Military and Monetary Inten¡entions after the Cold War' (1997) 38 Hartard International Law Journal443 'The Politics of Collective Security' (1996) 17 Michigan Journal of International Law 373 'The Uses of Sovereipty in the New Imperial Order' (1996) 6 Australian Feminist Law Journal63 I consent to this copy of my thesis, when deposited in the University Library, being made available for loa¡r and photocopylng. An¡re fford January 1999 I 11 ACKNOWLEDGEMENTS I have been blessed with the support of many family, friends and colleagues during the writing of this thesis. I would like to thank Dorinda Dallmeyer, Judith Gardam, W Ofuatey-Kodjoe, Peter Uvin and members of the editorial boards of the Harvard International Law Journal andthe Michigan Journal of International Lqw, for their detailed and helpful comments on various draft chapters of this thesis. My comrades at the School of Law and Legal Studies, particularly Greta Bird, Sue Davies, Ian Duncanson, Judith Grbich, Adrian Horre, Andrea Rhodes-Little and Margaret Thornton, have provided me with a steady sogrce of friendship, and have taught me the pleasures and responsibilities of critical scholarship and of taking chances. In addition, Ian Duncanson and Judith Grbich have patiently provided detailed and insightful comments on various draft chapters, while my lively conversations with Andrea Rhodes-Little have illuminated many of the connections made in this thesis and helped me find'the words to say it'. Thanks are also due to Jennifer Beard, Krysti Guest, Jyoti Larke, Jindy Pettman and Ann Tickner for their support and for the many discussions that informed my ideas about feminist theory and about military and monetary interventions. I was encouraged during my work on this project by my colleagues at the Faculty of Law of the Australian National University, particularly Philip Alston, Tom Campbell' Deborah Cass, Jennifer Clarke, Judith Jones, Lynda Lee, Robet McCorquodale, Martin Phillipson and Gerry Simpson. I am also grateful to my parents, William and Rolene Orford, for the many forms of support they have given me, not least being the intensive hours of baby-sitting they provided in the long final weeks of proofreading. Two people deserve particular thanks. I owe an enoÍnous debt to Hilary Charlesworth for her generous supervision of this thesis. Her enthusiasm for the project from the outset and the gift of her friendship have made the experience of writing the thesis a wonderful and rewarding one. Her patient r"áditrg of each chapter and her detailed and insightful comments were of enorïnous assistance in shaping my arguments, while the example of her courageous and risk-taking scholarship guided my approach to 'writing about internãtional law. In addition, she offered me valuable advice on all aspects of thesis-writing, from issues of style and form, to assistance in publishing chapters and presenting PaPers. The constant encouragement and enthusiastic support of my dear friend and partner Andrew Robertson have helped make it possible for me to complete ihis thesis. My work has benefited enormously from our ongoing conversation about law, politics, life and critique, while his companionship and gentle faith in my ideal and aspirations have made all the difference. Each chapter of this thesis has been greatly improved by his careful reading and valuable comments. This thesis is for our beloved son Hamish, in the hope that he will inhabit a world in which it is safe for him to be a man in whatever wild, wonderful and subversive ways he can imagine. llt 1V ABSTRACT This thesis is a study of representations of international legal texts which describe and justiff the post-Cold War role of the United Nations Security Council. The post-Cold War era has seen a revitalisation of the Security Council and an expansion of its role in maintaining international peace and security. The resulting debates about the legality, legitimacy and morality of Security Council actions reveal a great deal about the powerful myths that shape the identity and the identifications of internationalists. The thesis has three principal aims. The first is to analyse the theories of collective security upon which international legal doctrines are based. I explore the underlying assumptions about the causes of security crises and the effects of military intervention which inform arguments about the legitimacy of Security Council actions. Those assumptions limit the capacity of international lawyers to achieve the goals of peace and security or to engage with the process of globalisation. The second aim is to explore the operation of collective security texts at the ideological or cultural level. I argue that while international lawyers are not successful on their own terms in offering an account of the operation of law and politics in the collective security field, legal texts do have an effect as cultural products. Texts about intervention operate to legitimise and naturalise 'War a new set of power relations emerging in the post-Cold era. I draw on literary, cultural and film theory to explore the fascination, appeal and effects of intervention narratives. The third aim is to consider how international lawyers might develop the ethical practices necessary to think critically about the power effects of the knowledge they produce. I argue that such issues can only be addressed by complicating the way in which po\ryer is understood to be operating in and through international law. While intemational law rernains concerned primarily with attempts to develop constraints on the exercise of power as it òperates through repressive means at the level of the state or international organisations, it ignores forms of power that operate in more productive, private and personal ways. Those who participate in shaping perceptions of ihe legality of the actions of multilateral institutions need to develop a self- reflexive intellectual practice, one which recognises that law's stories are both an exercise and an effect of power relations. v vl TABLE OF CONTENTS Chapter 1: Law, Power and International Intervention 1 I.INTRODUCTION I II. OUTLINE OF CTIAPTERS 7 III. CRITICAL QUESTIONS ABOUT INTERNATIONAL LAW 11 A. Beyond sovereignty: Iaw, power and lcnowledge 11 B.Irnages of internationql law 24 C. Economic globalisation after the Cold Vlar 28 D. The gender of intervention 31 E. Critical engagement: strategt and ethics 40 l. Reading and writing securitY 40 2. Speed and strategY 42 Chapter 2: The Politics of Collective Security 47 I.INTRODUCTION 47 II. THE SILENCES OF INTERNATIONAL LAW 50 A. The impact of Security Council actions on women 51 l. Rape, militarised masculinity and UN peacekeeping 51 2.T\e gendered effects of economic sanctions 54 3. The remilitarisation of US culture 55 4. Mainstream analyses of international law 58 B. Proposals for reþrming the collective security system 6l 1. Democratic participation 63 2. Accountability 70 III. UNACCOLINTABLE KNOWLEDGE PRACTICES 72 A. Protecting the security of states 74 B. Representations of internal security and external threats 76 C. Representations of the naturalness and inevitability of '18 state Power D.Images of crisis 79 E. Violence and difference 83 F. Situating knowledge about collective security 87 IV. CONCLUSION 90 Chapter 3: Locating the International - Collective Humanitarian 93 Intervention after the Cold War I.INTRODUCTION 93 II. REPRESENTATIONS OF THE INTERNATIONAL 95 III. LOCATING THREATS TO THE PEACE _ TTIE CASE OF TIIE 103 FORMER YUGOSLAVIA A. The nature of restructuring in the former Yugoslavia 104 B. Threats to the Peace 109 IV. THREATS TO DEMOCRACY AND HUMAN RIGHTS l14 A. Defining democracy and human rights 115 B. The impact of international institutions on human rights r20 and democracY 1. The World Bank and the IMF t2t vrl 2. Multilateral and regional trade agreements 130 3. Democracy, human rights, and the idea of internationalism t36 V. POWER, KNOWLEDGE, AND INTERNATIONAT 138 INTERVENTION VI. CONCLUSION r45 Chapter 4: The Private Life of Intervention 149 I.INTRODUCTION t49 II. SUBJECTIVITY AND IDENTIFICATION 151 III. THE SUBJECTS OF INTERVENTION r63 A. Disruption of the established order r64 B.'Knights in Wite Armour' r67 C. Symbols of helplessness 173 D. Fear of powerlessness 179 E. Reffirmation of the existing order 180 F. Violence and narratíve pleasure t82 IV. CONCLUSION: DANGEROUS FICTIONS 184 Chapter 5: Embodying Internationalism - The Making of 189 International Lawyers I.INTRODUCTION 189 II. REPRESENTATIONS OF INTERNATIONAL LAWYERS r92 A. New world order professionals r92 B. Agents of humanitarianism 197 C. Handmaidens and gentle civilisers 200 III. THE DISCIPLINING OF INTERNATIONAL LAWYERS 202 A. Legal education as ø technolog) of the self 205 B.Imperial pleasures 2r4 IV. ANXIOUS IDENTITIES AND THE USES 216 OF INTERVENTION A. Disciplinary threats 2r7 B. The needfor enemies 223 C. Making globalisation palatable 228 D. Power without responsibility 231 V. CONCLUSION 232 Chapter 6: Engaging with Internationalism 235 I.INTRODUCTION 235 II. 'PERSONAL HISTORY' 239 III.'THEORETICAL REFLECTION' 246 IV. AFTER INNOCENCE 252 A. Academics and the work of community 253 B. Experts, power and authority 260 V.
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